On June 13, 1997, petitioner was convicted of capital murder in the Circuit Court of Mobile County, Alabama. (Doc. 12, Exhibit A, Case Action Summary Sheet, at 3; see also Doc. 1, at 2.) Crumpton was sentenced, that same day, to a term of life imprisonment without the possibility of parole. (See Doc. 12, Exhibit A, Case Action Summary Sheet, at 3.) Crumpton's conviction and sentence were affirmed on appeal by unpublished memorandum decision entered on August 14, 1998. See Crumpton v. State, 741 So.2d 481 (Ala.Crim.App. 1998) (table). Petitioner's application for rehearing was denied on October 2, 1998, Crumpton v. State, 744 So.2d 954 (Ala.Crim.App. 1998) (table) and his petition for writ of certiorari to the Alabama Supreme Court was denied on December 18, 1998, Ex parte Crumpton, 745 So.2d 318 (Ala. 1998) (table).1
On December 1, 2008, Crumpton filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama, his fifth but most recent state collateral challenge to his conviction and sentence. (Compare Doc. 12, Exhibit D, at 2 with Doc. 12, Exhibit A, Case Action Summary Sheet.)2 Petitioner's Rule 32 petition was summarily dismissed by the trial court on June 10, 2009. (Doc. 12, Exhibit A, ORDER)
Petitioner's claim is time-barred on its face and because Petitioner has failed to assert equitable tolling, his petition should be summarily dismissed. This is also Petitioner's fifth post conviction petition for relief and Petitioner offers no facts to explain why these allegations were not raised in any of his previous petitions. Petitioner's claims for relief are successive and therefore precluded.
Petitioner alleges the Court was without jurisdiction to render the judgment or to impose the sentence because the statute [under] which he was tried, convicted and sentenced is unconstitutional. While couched as a jurisdictional claim, this allegation is actually nonjurisdictional. As such, it is precluded because it could have been raised at trial or on appeal.
Additionally, Alabama's capital murder statute has been upheld in a variety of constitutional challenges. Because this is a nonjurisdictional allegation, it is also precluded by the limitations period. The Court shall not entertain any petition for relief from a conviction or sentence unless the petition is filed within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals.
Petitioner also alleges newly discovered material facts exist which require that the conviction or sentence be vacated by the Court because he can find no proof that the Acting District Attorney, Abraham Mitchell, was appointed by the Governor, therefore the grand jury proceeding was not conducted as proscribed by statute. Petitioner has failed to meet the requirements of Rule 32.1(e). Petitioner has failed to allege this fact was not known to him or his counsel at the time of trial or sentencing or in time to file a posttrial motion, or in time to be included in a[] previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence; this fact is not merely cumulative to other facts that were known; this fact does not amount to impeachment evidence; if this fact had been known at the time of trial or sentencing, the result probably would have been different; and this fact establishes that he is actually innocent of the crime for which he was convicted or he should not have received the sentence he received.
Additionally, Petitioner's allegation is without merit. Defects in an indictment which may be challenged at any time contend that the indictment failed to charge an offense. The Savage court went on to citethat certain defects in the indictment must be raised prior to trial, or will result in waiver. These are objections or defects in the indictment which go to form rather than substance and include the failure of the district attorney to sign the indictment. Therefore, Petitioner's allegation that Abraham Mitchell was unauthorized to sign and present the evidence to the grand jury is without merit because it does not go to the substance of the indictment, but rather to the form of the indictment.
Accordingly, this Court is authorized summarily to dismiss the petition without an evidentiary hearing because the allegations raised are precluded, fail to state a claim and raise no issue of material fact or law.
The petition is dismissed under Rule 32.7.
(Id. at 3-5 (internal citations omitted).) The Alabama Court of Criminal Appeals affirmed the judgment of the circuit court on January 22, 2010 in an unpublished memorandum opinion. (Doc. 12, Exhibit D.)
Crumpton claims that the trial court was without jurisdiction to render judgment or impose sentence because the statute upon which he was charged was unconstitutional. Crumpton's claims are nonjurisdictional constitutional allegations subject to the procedural bars of Rule 32. The circuit court correctly ruled that this claim is procedurally barred from this Court's review as it could have been addressed at trial or raised on direct appeal, but was not. Rule 32.2(a)(3) and 32.2(a)(5), Ala.R.Crim.P.
. . .
Crumpton claims that there is newly discovered evidence in his case that the trial court lacked jurisdiction to impose sentence. Specifically, Crumpton argues that the acting district attorney, Abraham Mitchell, who appeared before the grand jury at his indictment was not appointed by the Governor of the State of Alabama pursuant to § 12-17-181, Ala. Code 1975.
To establish a claim based on newly discovered evidence, the appellant must show that "[t]he facts relied upon were not known by thepetitioner or the petitioner's counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence." Rule 32.1(e)(1), Ala.R.Crim.P. Crumpton's alleged newly discovered evidence does not satisfy the requirements of Rule 32.1(e) [] nor has Crumpton demonstrated that the grounds for his claim are based upon newly discovered material facts. Therefore, this claim is procedurally barred by Rules 32.2(a)(3) and (a)(5) and (c) as pleaded by the State.
Further, Crumpton is essentially arguing that his indictment is defective, which is a nonjurisdictional claim. While Crumpton does allege that the governor did not appoint the district attorney which (sic) signed his indictment, and while Crumpton further alleges that this affects the substance of the indictment, the circuit court does not derive its jurisdiction from the district attorney in a criminal action. Therefore, the validity of the appointment of a district attorney would not affect the jurisdiction of a circuit court. Thus the circuit court correctly ruled that this claim has no merit and that summary dismissal was appropriate under Rule 32.7(d).
For the foregoing reasons, the judgment of the circuit court is due to be affirmed.
(Id. at 5-6 (some internal citations omitted).) Crumpton's application for rehearing was overruled and his petition for writ of certiorari (Doc. 12, Exhibit E) was denied, without written opinion, on December 10, 2010 (Doc. 12, Exhibit F). The certificate of final judgment of affirmance issued that same date, December 10, 2010 (compare id. with Doc. 12, Exhibit G).
On February 16, 2011, Crumpton filed the instant habeas corpus action in this Court collaterally attacking his conviction and sentence (see Doc. 1, at 13). Therein,Crumpton raises the same two issues he has most recently pursued in the state courts of Alabama, namely: (1) he was denied due process of law because he was convicted and sentenced for capital murder pursuant to an unconstitutional state statute— § 13A-5-40(a)(10) — that fails to define an essential element of the crime; and (2) he was denied due process of law and a fundamentally fair trial because he was tried, convicted, and sentenced of charges over which the state court did not have jurisdiction since the acting district attorney who appeared before the grand jury was not appointed in the manner proscribed by law. (Doc. 1, at 7 & 14-16.) In his answer, the respondent asserted both a statute of limitations defense and a procedural default defense. (See Doc. 12.) Therefore, the undersigned entered an order on June 27, 2011 requiring Crumpton to respond to the respondent's asserted defenses. (Doc. 13.) Crumpton filed his response on August 30, 2011. (Doc. 16.) In his response, Crumpton rather confusingly combines his arguments regarding why neither defense is applicable to his case. (See id. at 4-6.)
First Crumpton argues that both of his claims challenges the State of Alabama jurisdiction to render judgment and should fall under the miscarriage of judgment (sic) exception. First Crumpton claims that the State Court lacked jurisdiction to charge, try and convict him, because the Statute upon which he was indicted, 13A-5-40(a)(10) Ala.Code 1975, is Unconstitutional on its face [and]
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